Life
as a barrister brings many bizarre experiences, but few more ridiculous than
debating before the Video Appeals Tribunal in Frith Street, Soho, how close
a close-up of a vagina is acceptable in an adult video. The application of
basic principle and sensible policy in an area of the law notable for the
presence of neither quality was the task of the Liberal Democrats’ Working
Group on Censorship, which I chaired over the past year. Our proposal was
adopted as party policy last month by the Liberal Democrats at their
conference in Southport.
As Geoffrey Robertson, QC, and Andrew Nicol, QC, point out in
Media
Law: The history of obscenity provides a rich and comic tapestry on
the futility of legal attempts to control sexual imagination. Who would
now regard as other than ridiculous the views of Sir Archibald Bodkin, the
Director of Public Prosecutions, in 1922 that James Joyce’s Ulysses
should be banned because it contained “a great deal of unmitigated filth and
obscenity”?
The law applies two main concepts to censor expression: “obscenity” (that
which tends to “deprave and corrupt”) and “indecency”. They raise more
questions than they answer. Judges and juries can often do no more than echo
Mr Justice Stewart, of the US Supreme Court, who asserted that he could not
define obscenity, but “I know it when I see it”.
Freedom of expression is an important right, central to our autonomy and
necessary for an effective democracy. But it is not absolute. There are
other goals, such as the protection of children, which justify restrictions.
The task of the law must be to define, with more precision, an acceptable
test for censorship of sexually explicit materials.
The new policy proposes that the law be amended to make it an offence to
publish, sell, electronically transmit or display material that exploits for
sexual purposes unlawful acts involving (or appearing to involve) persons
under the age of 16, non-consenting adults (or adults consenting to very
serious harm) or animals.
So child pornography, snuff movies and films showing bestiality would
continue to be banned, and anyone involved in such activities should be
prosecuted and punished severely. But adults would (if they wished) be able
to watch in private films and videos depicting consensual sexual acts (apart
from those causing very serious harm) between adults.
The working group received many submissions, from Liberal Democrats and
others, that to allow the publication of material that does not fall into
these excluded categories would contribute to the degradation of society.
There can, it was said, be no freedom to reduce women to body parts whose
function is to serve as sexual objects for male pleasure. There are four
answers. First, it is fundamental to the concept of freedom of expression
that we tolerate much of which we disapprove, and we do not prohibit all
that we would not condone. The criminal law has sufficient work without also
seeking to regulate taste in a free society. Secondly, the law should
prosecute with vigour anyone who forces women (or men) to act against their
will. Thirdly, responsible attitudes towards sexuality should be encouraged
by more effective sex education. Fourthly, for many people access to
sexually explicit materials is an important aspect of their personal
fulfilment.
The working group considered whether to maintain the rule that 18 is the
appropriate age at which a person becomes an adult for the purchase of
sexually explicit materials. Some of those consulted argued that many youths
under that age lack maturity. They expressed concern that lowering the age
may encourage the distribution of such material in schools. But it makes no
sense for the law to say that a person is sufficiently mature to choose to
have sex at 16 (and indeed to have a baby) but not mature enough to watch a
sexual act on a video. Schools already have to deal with pupils who bring in
such material. We therefore concluded that 16 is the appropriate age at
which a person should be treated as an adult.
The regulation of sexually explicit material is a sensitive, important
and difficult subject that touches a number of erogenous zones of public
policy. But our law needs to recognise that society has changed. Vibrators
are now sold in Selfridges, condoms are on open shelves in Boots, and any
moderately astute 16-year-old already has access to sexually explicit
material on the internet.
The adult entertainment industry wins no Oscars for acting, script or
cinematography. It is a long, long way from what Norma Desmond had in mind
when she said to the director at the end of Sunset Boulevard: “Time
for my close-up, Mr de Mille.” But for the law to restrict sexually explicit
materials for adults, except where unlawful acts are depicted, is
increasingly absurd, futile and out of focus. The law of censorship should
stop being so censorious.
